Unanimous Conflict: the Pledge of Allegiance Decision

A typical Supreme Court decision may contain written opinions by any number of the justices, but fundamentally you have an argument between two sides: the majority and the dissenters. Monday’s decision (Elk Grove v. Newdow) on the Pledge of Allegiance was the rarest of birds: a unanimous (8-0) decision based on four wildly conflicting rationales – the majority opinion written by Justice Stevens and “concurring” opinions by Justices Rehnquist, O’Connor, and Thomas, all of whom disputed each other’s reasoning as vociferously as they disputed Stevens’.

First the unanimity: The Court threw out a decision by the 9th Court of Appeals which had found (in Michael Newdow’s favor) that the Elk Grove Unified School District violated the Constitution when it required that the Pledge of Allegiance be said in the classroom where Newdow’s daughter attended school. So, public schools are free to keep saying the Pledge, including the controversial phrase “under God” -- at least for now.

But if you’re a fan of the Pledge as currently written (the Pledge has morphed several times since its creation in 1892 to celebrate the 400th anniversary of Columbus’ voyage, with “under God” added 1954), the majority opinion is hardly a ringing endorsement of your position. The majority refused to rule on the constitutionality of asking public school students to say the Pledge, but instead dismissed the case on the technical grounds that Newdow lacks the standing to sue. What the five justices represented by Stevens’ opinion will say if and when another case tests the constitutionality of the Pledge remains a mystery.

Does Newdow have a place to stand?

It is an essential point of law that you can’t sue just because you think something is wrong. If something is rotten in the state of Denmark, Hamlet can sue – but you can’t because it’s none of your business. In legal jargon, you don’t have standing in the case.

In this case, Newdow claims to be standing on two legal grounds: He represents his daughter, whose religious liberty is being impaired by the indoctrination of the state, and he represents himself, because the government is interfering with his right as a parent to try to pass his beliefs on to his daughter.

Newdow’s right to represent his daughter was blown out of the water when the girl's mother, Sandra Banning (the two were never married and do not live together now, but have a custody agreement), protested. According to a state court order, she has the final authority to represent the girl’s legal interests. Banning is a Christian who does not sympathize with Newdow's attempts to transmit his atheism to their daughter, and thinks “under God” is a fine idea. In her own legal motion, “Banning expressed the belief that her daughter would be harmed if the litigation were permitted to proceed, because others might incorrectly perceive the child as sharing her father’s atheist views.” Consequently, Stevens dismisses Newdow’s case because “Newdow’s standing derives entirely from his relationship with his daughter.”

Stevens also finds no injury to Newdow himself or his parental rights.

Nothing that either Banning or the School Board has done, however, impairs Newdow's right to instruct his daughter in his religious views. ... There is a vast difference between Newdow's right to communicate with his child--which both California law and the First Amendment recognize--and his claimed right to shield his daughter from influences to which she is exposed in school

You might expect the Court’s more conservative judges to agree with any argument that saves the Pledge of Allegiance, but not so. Chief Justice Rehnquist describes Newdow’s situation much more sympathetically than Stevens does: Newdow “wishes to enjoin the School District from endorsing a form of religion inconsistent with his own views because he has a right to expose his daughter to those views without the State’s placing its imprimatur on a particular religion.” He agrees that Newdow cannot sue on his daughter’s behalf if Banning objects, but “the daughter is not the source of respondent’s standing; instead it is their relationship that provides respondent his standing, which is clear once respondent’s interest is properly described.” Justices O’Connor and Thomas agree with this reasoning. (Justice Scalia, perhaps the Court’s most conservative member, did not take part in this case.)

So the Court’s conservative wing thinks the case can’t be dismissed on a technicality, and has to be decided on its merits.

The Establishment Clause

When people talk about the separation of church and state, they are referring to the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” The heart of Newdow’s case is that by creating a daily ritual in which public school children say “one nation, under God,” the state of California has essentially established theism as the state religion. In other words, the state has officially endorsed belief in God and implicitly condemned Newdow’s religion, atheism.

Justices Rehnquist, O’Connor, and Thomas all think Newdow is wrong about this. But they justify their reasoning in three very different ways.

Chief Justice Rehnquist makes what is essentially an original-intent argument, claiming that the Founders could not possibly have intended the Establishment Clause to eliminate any mention of God in public rituals, because they attended without protest and even presided over public rituals that mentioned God in precisely this way. “Examples of patriotic invocations of God and official acknowledgments of religion’s role in our Nation’s history abound,” he writes, and quotes examples by Presidents Washington, Lincoln, Wilson, Eisenhower, and Franklin Roosevelt – two Republicans, two Democrats, and Washington, who transcended party. He calls attention to the “In God We Trust” motto on our money, and the proclamation “God save the United States and this honorable Court” which has opened Supreme Court sessions since 1827. He concludes:

There is no doubt that respondent is sincere in his atheism and rejection of a belief in God. But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress. There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase "under God" somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to "with liberty and justice for all" fails. Our cases have broadly interpreted this phrase, but none have gone anywhere near as far as the decision of the Court of Appeals in this case. The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase "under God" cannot possibly lead to the establishment of a religion, or anything like it.

Ceremonial Deism: when God isn’t religious

If Rehnquist seems to be saying, “This case is silly” Justice O’Connor takes it very seriously. She appears to believe that the case is a much closer call and needs more justification than the Chief Justice has given it. She explicitly denies two arguments that might be read into Rehnquist’s opinion: (1) that it doesn’t matter what the Constitution says because we’ve always done it this way; and (2) that the Pledge is such a tiny establishment of religion that it’s not worth worrying about. She cites approvingly a prior opinion that “"no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” And she affirms that “There are no de minimis violations of the Constitution – no constitutional harms so slight that the courts are obliged to ignore them.” The examples cited by Rehnquist “are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.”

O’Connor reviews at some length the history of recent Establishment Clause cases, including her own opinions. She emphasizes that she does not take the Establishment Clause lightly. In her reading of the precedents, the most important test is whether a given action implies a government endorsement of religion.

Endorsement, I have explained, "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

From this quote I imagine, for example, that O’Connor would have voted to remove Judge Roy Moore’s massive ten commandments monument, if that case had reached the Supreme Court. However, O’Connor does not find an endorsement of religion in the kinds of examples Rehnquist mentioned. Instead, they fall under an exemption O’Connor makes for “ceremonial deism” -- activities that might look and sound religious on their face, but actually are not religious at all.

I believe that although these references speak in the language of religious belief, they are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history. ... It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. -- Eradicating such references would sever ties to a history that sustains this Nation even today. ... For centuries, we have marked important occasions or pronouncements with references to God and invocations of divine assistance. Such references can serve to solemnize an occasion instead of to invoke divine provenance. The reasonable observer discussed above, fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over non-religion.

O’Connor then lists the qualities that make for an expression of ceremonial deism and finds that the Pledge of Allegiance satisfies them: history and ubiquity, absence of worship or prayer, absence of reference to a particular religion, and minimal religious content.

O’Connor’s reference to a “reasonable observer” is key. The issue, in her opinion, is not whether one person might view a government action as endorsing his religion while another might be offended. Neither should be allowed to veto an observance that a reasonable person would view as ceremonial rather than religious.

Personally, I have to stretch to see this view. But an everyday equivalent of what O’Connor is talking about might be the phrase good-bye. Originally, it was a contraction of “God be with you.” And someone could still interpret it that way if they chose. But a reasonable person does not imagine that you are endorsing a religion when you say “good-bye” or even that you are asserting the existence of a God who could be with someone. Similarly, no one thinks the Marshal of the Supreme Court is a very religious person just because he keeps saying “God save the United States and this honorable Court.”

Burning the center

By far the most radical opinion is the one put forward by Justice Thomas. He begins by arguing that the Court of Appeals, whose verdict he and the rest of the Court are in the process of reversing, got it right. That opinion, he claims, is “based on a persuasive reading of our precedent, especially Lee v. Weisman. The problem, according to Thomas, is in the previous Supreme Court decisions, not in the appeals court’s application of them to this case.

As I mentioned in my last summary, the Court does not reverse itself lightly. The law is not supposed to flicker between interpretations from one court session to the next. Consequently, it is a big deal when a justice advocates a reversal, and major reversals tend to become famous, like Brown v. Board of Education.

OK, so what was the Lee decision and how would Thomas apply it here?

In Lee, the Court held that invocations and benedictions could not, consistent with the Establishment Clause, be given at public secondary school graduations. ... The Court surmised that the prayer violated the Establishment Clause because a high school student could--in light of the "peer pressure" to attend graduation and "to stand as a group or, at least, maintain respectful silence during the invocation and benediction," --have "a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow
Adherence to Lee would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.

Thomas clearly isn’t buying into O’Connor’s notion of ceremonial deism.

pledging allegiance is "to declare a belief" that now includes that this is "one Nation under God." It is difficult to see how this does not entail an affirmation that God exists. Whether or not we classify affirming the existence of God as a "formal religious exercise" akin to prayer, it must present the same or similar constitutional problems.

So, children too young to resist peer pressure are essentially coerced into affirming the existence of God. Where can you go with that?

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.

Before you start thinking that Justice Thomas has converted to liberalism or been replaced by an alien double, realize why he’s making this argument: He’s burning the center. Thomas’ argument is a warning to less conservative colleagues like Rehnquist and O’Connor. He’s essentially saying, “Don’t think you can go part-way down that road and stop before it’s too late. You can’t.” Justice Scalia sometimes uses the same technique, as when he argued (in the Texas sodomy law case) that the precedent the Court was establishing would make it impossible to sustain a law against gay marriage. Radicals of any type frequently argue that the center is untenable.

Thomas goes on to argue that the Lee precedent is wrong, and is wrong for the following reason:

The kind of coercion implicated by the Religion Clauses is that accomplished "by force of law and threat of penalty.” ... Peer pressure, unpleasant as it may be, is not coercion.

However, Justice Thomas seems to be making this point purely gratuitously, because even this reinterpretation is not enough to save the Pledge. Children really are coerced to attend school – by law and penalty, not just by social pressure. And so, Thomas believes he has to reinterpret some of the most fundamental principles of constitutional law.

Who does the Establishment Clause apply to?

When the Bill of Rights was ratified, it did not apply to the States. The States were covered by their own constitutions, and the federal constitution merely described and limited the powers of the federal government. And so, when the Establishment Clause said: “Congress shall make no law ...” it meant precisely that – Congress. State legislatures could and did establish religions. “At the founding,” Thomas asserts, “at least six States had established religions.” (Massachusetts was the last to dis-establish, in 1833.)

The other rights enumerated in the Bill of Rights were similarly protected against infringement by the federal government only. If a state wanted to restrict speech or the press, it was bound only by the limits of its own constitution. A state could, for example, decide that some people are slaves and have no rights at all. So how did the Bill of Rights come to have the sweep that it enjoys today? The answer lies in the Fourteenth Amendment, passed after the Civil War:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This is a bold statement. If you read it out loud with the right inflection, you should get goosebumps.

The most obvious purpose of the Fourteenth Amendment was that slavery should never rear its ugly head again. But a series of Supreme Court decisions interpreted it more broadly to mean that any right granted by the federal constitution cannot be taken away by a state. Your state constitution can give you more rights, but it can’t give you less. This doctrine is called “the incorporation of the Bill of Rights”. In other words, the Fourteenth Amendment incorporates the federal Bill of Rights into the state constitutions.

Enter Clarence Thomas. Justice Thomas wants to make a distinction between amendments that were originally intended to grant rights to individuals, and those that were intended merely to keep the federal government out of the states’ business. The former incorporate, the latter don’t. Can you guess which kind he thinks the Establishment Clause is?

Quite simply, the Establishment Clause is best understood as a federalism provision--it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand. ... Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect--state establishments of religion.

In other words, the Establishment Clause never granted any individual liberty. Its point was to protect the established churches of Massachusetts, Connecticut, Maryland, etc. from federal interference. And if the Establishment Clause wasn’t aimed at individuals to begin with, then there’s nothing to apply the Fourteenth Amendment to. A state can’t take away a liberty that the Bill of Rights never gave, and so the Fourteenth Amendment can’t prevent it from taking that liberty away. Got that?

Now, the usual interpretation runs more like this: The Establishment Clause gave the individual citizen freedom from a federal established religion, and so incorporating this right gives individuals freedom from state established religions. Thomas acknowledges this interpretation, disagrees with it, but then says that even under this interpretation the Pledge is safe, if you interpret “establishment of religion” strictly.

The traditional "establishments of religion" to which the Establishment Clause is addressed necessarily involve actual legal coercion:
"The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.”

(The quote is from Justice Scalia’s dissenting opinion in Lee.) Given this strict a definition of establishment, Thomas concludes:

It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments. ...
Through the Pledge policy, the State has not created or maintained any religious establishment, and neither has it granted government authority to an existing religion. The Pledge policy does not expose anyone to the legal coercion associated with an established religion. Further, no other free-exercise rights are at issue. It follows that religious liberty rights are not in question and that the Pledge policy fully comports with the Constitution.

What happens now?

Immediately, nothing. Everything goes on as before. Before long some other atheist, one with a clearer right to represent his or her child’s interests, will probably challenge the Pledge again, and the case will work its way up to the Supreme Court. Probably the Pledge will survive again. Scalia will certainly join the three justices who already say it is constitutional, so they just need to pick up one of the five uncommitted judges, or add a vote from a judge appointed by the next president.

The more interesting question is how far the ideas expressed in Justice Thomas’ opinion will go. Rehnquist and O’Connor expressed no interest in rethinking the Establishment Clause from scratch, though Scalia might. And there is no predicting how many judges the next president might get to appoint. It is not impossible that a few years hence we could have a Court for whom the Establishment Clause merely outlaws mandatory church attendance or federally-enforced tithing. Or even a Court that would allow, say, Utah to establish the Mormon church, because it doesn’t view the Establishment Clause as defending any individual liberty at all.

Doug Muder

17 June 2004

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